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July 7, 2020

CAFE Insider 7/7: Ghislaine, ICE & DOJ

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In this episode of CAFE Insider, “Ghislaine, ICE & DOJ,” Preet and Anne discuss the recent ICE decision to force foreign students taking online-only college classes back to their home countries; the indictment in SDNY of Ghislaine Maxwell, Jeffrey Epstein’s longtime associate and enabler; and the news that Richard Donoghue, the U.S. Attorney for the Eastern District of New York, is taking a new job as Principal Associate Deputy Attorney General (PADAG). 

We hope you’re finding CAFE Insider informative. Email us at [email protected] with your suggestions and questions for Preet and Anne. 

References and Supplemental materials below. 

HAMILTON

What to know about how to watch Hamilton on Disney+” CNET, 7/5/20

Preet’s tweet about Hamilton, 7/4/20

SCOTUS 

Justice Elena Kagan’s unanimous opinion in Chiafalo v. Washington, the “faithless elector” decision

ICE 

ICE’s press release announcing modifications of temporary exemptions for foreign students, 7/6/20

“ICE says foreign students taking online-only classes in the fall can’t remain in U.S.,” CBS News, 7/6/20

GHISLAINE MAXWELL INDICTED 

CLIP: SDNY acting U.S. Attorney Audrey Strauss announces charges against Maxwell

SDNY’s indictment of Ghislaine Maxwell, 7/2/20

SDNY’s indictment of Jeffrey Epstein, 7/8/19

“Former U.S. prosecutor discusses Jeffrey Epstein’s 2008 plea deal,” NPR, 7/10/19

Rule 404: Character Evidence; Crimes or Other Acts

The Trafficking Victims Protection Act of 2000 

DOJ’s Guide to U.S. Federal Law on Sex Trafficking

Image of Ghislaine Maxwell posing on the British throne with Kevin Spacey

“No Federal Prostitution Charges for Spitzer,” New York Times, 10/6/08

DONOGHUE LEAVING EDNY

“Brooklyn U.S. Attorney Heads to Top DOJ Role,” Politico, 7/2/20

THE WRAP

“Smelly durian fruit forces evacuation of Bavarian post office,” The Guardian, 6/23/20

Preet Bharara:

From CAFE, welcome to CAFE Insider. I’m Preet Bharara.

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

How are you Anne?

Anne Milgram:

I’m good. How you doing?

Preet Bharara:

So, I almost forgot that I need to log in so we could tape this thing because I was going to watch Hamilton film one more time.

Anne Milgram:

Yeah, you can watch it anytime.

Preet Bharara:

I signed up for that Disney+ so fast. So, we were going to watch it as a family. Couldn’t watch on Friday because people were doing things. We’re going to watch it Saturday evening and then I cheated.

Anne Milgram:

No.

Preet Bharara:

Friday evening, and like movie night, I couldn’t resist so I watched it-

Anne Milgram:

By yourself?

Preet Bharara:

Yeah, yeah. Yes.

Anne Milgram:

Without your family? Preet. We know we call that in our family, Cheetah. The fastest animal alive.

Preet Bharara:

Look, it’s not like I was stealing a penguin. All right?

Anne Milgram:

That’s a violation of the rules, though. I always love like, we have friends.

Preet Bharara:

I only watched a couple of things. Like I watched a couple of things but then I re-watched-

Anne Milgram:

That’s your story and you’re sticking to it.

Preet Bharara:

I re-watched the entire two hours and 40 minutes the next evening with everyone.

Anne Milgram:

And did everyone know you’d watch it the night before?

Preet Bharara:

Yeah, I faced up right away.

Anne Milgram:

Okay.

Preet Bharara:

I think I might have tweeted about it… I can’t do anything in secret anymore because I end up tweeting about it.

Anne Milgram:

It’s true. Your kids just need to look on Twitter and they’ll know, “Oh, dad watched it.”

Preet Bharara:

They all follow me now. Like they didn’t used to, but now they do follow me.

Anne Milgram:

No cursing. You got to keep it clean.

Preet Bharara:

I mostly don’t curse.

Anne Milgram:

You generally do anyway. Yeah, not really an issue. Yes.

Preet Bharara:

So, that was a highlight. That was good. Have you seen again?

Anne Milgram:

Speaking of Hamilton, we saw it in the theaters. We haven’t watched it yet, but we will watch it. And we’re really excited to watch it and to see it. And I know, we were doing other stuff on Friday night. And like Twitter was exploding with the film and the sort of hashtag so we’re really excited to watch it. Do you know who else is up on Hamilton by the way?

Preet Bharara:

Who?

Anne Milgram:

Justice Kagan.

Preet Bharara:

Oh yeah, she makes a reference. We discussed this in my interview for Stay Tuned that hasn’t come out yet. She makes a reference to Hamilton and also Veep.

Anne Milgram:

Yes, yes, in the faithless electors case. And we could talk about that really quickly if you want to because of course relates to Hamilton, which is just a strange thing to say, that we segued from Hamilton, as a film on Disney+ to Justice Kagan’s opinion for the Supreme Court. A unanimous opinion that basically said that states can require people who are promised to uphold essentially a vote for a candidate in a state.

Anne Milgram:

So for example, in Washington State, Hillary Clinton was the Democratic nominee in 2016. Three people didn’t want to vote for Clinton, instead they were promised to vote for her. People vote for electors that then go on to the electoral college to vote for the actual president. The State voted for Clinton. All those electors were then promised her, three people didn’t want to do that. And so, they wrote in Colin Powell, and the Supreme Court basically said no.

Anne Milgram:

States are allowed to enforce, you basically say, the electors are promised to a certain candidate. And states are allowed to say you have to vote for those people, you can’t just go freelance. So, it all sort of comes full circle. To me the takeaway, I don’t know if you have any takeaways on it, but to me, the takeaway is that it’s really important for this election coming up that the state votes for a candidate that those votes get counted for that candidate, and that there isn’t the sort of freelancing of people who, if you think about it, it would disenfranchise all of us, right?

Anne Milgram:

If I vote for a candidate thinking that there’ll be someone who goes to the electoral college voting for that candidate, and then they go turn around and vote for someone else. It feels unfair.

Preet Bharara:

Yeah, I think that’ll make sense. And I think the fact that was unanimous, tells you what they thought of the argument. Could we focus on the more frivolous aspect of it for another second?

Anne Milgram:

Mm-hmm (affirmative).

Preet Bharara:

Do you think judges should be given leeway to have some fun in their opinions and make jokes, and make cultural references and that sort of thing because they do it from time to time? I think it’s okay.

Anne Milgram:

It’s very rare.

Preet Bharara:

I think some prudish jurisprudential people think that people should always be serious in a written opinion.

Anne Milgram:

Well, if you’re not going to be serious, this was the opinion to let loose a little because, there are three people who were writing in Colin Powell. In Colorado, I think there were three people who challenged the Colorado law requiring people to vote for the candidate. And only one of them, I think wanted to vote for someone else. The other two ultimately voted for Clinton. They were promised to Clinton.

Anne Milgram:

And so, there was very little harm here. In the bigger picture, it was more a legal question of, “Can states enforce this?” And I think the violation in Washington State was something like $1,000 per person, there was a fine. I don’t love fines generally. But in the bigger picture, it’s not a major criminal case where somebody’s liberty is at stake. It’s not the future of like, political contribution.

Anne Milgram:

So I think if you’re ever going to do it, now’s the time. But yeah, I will say, I was reading it, and I was like, “Huh.” So, I definitely had a reaction, I think it’s fine for them to do it once in a while. It’s just you and I have probably read now thousands of cases like it just, it’s so rare that you see it that I was like, “Oh, that’s interesting.”

Preet Bharara:

There was an opinion once, I can’t remember it was District court or Circuit Court. Where the matter issue, I think it has something to do with copyright, but had something to do with the movies. It was about the movie industry. And as we’re reading, we realize that the judge had sort of surreptitiously slipped into the text and into the footnotes in the language of the opinion, titles of movies. And so, it became sort of a game to-

Anne Milgram:

I remember that.

Preet Bharara:

Remember that?

Anne Milgram:

Yeah.

Preet Bharara:

And you had to figure out how many different titles you could find. So, it became kind of like an exercise. So, as we were saying earlier, one good thing that happened this weekend was, we watched Hamilton, the film. When that thing that happened is as colleges around the country are figuring out what their plans are for the fall. And there was hope against hope that there’ll be some return to normalcy.

Preet Bharara:

There is not for a lot of people going back to their universities and in my case, my daughter got the official news yesterday that she will not be going back to college at all, not in the fall or the spring, and she’s a rising sophomore. And that’s kind of upsetting. It’s a pretty aggressive action that her school is taking.

Preet Bharara:

But it leads to this other issue that has come up, that affects some of her friends also, and that is, ICE is essentially saying that with respect to foreign students who have been given student visas, if their schools are planning all online learning, they have to get the hell out of the country. You saw that?

Anne Milgram:

Yeah, I saw it. And it’s hard for me to understand why they’re doing this, and why they’re doing it in the way they’re doing it. And so, Immigration and Customs Enforcement has long had this rule that basically says, “You can’t get a visa to come to the US just to take online classes.” And so, for example, you couldn’t just come to the U.S. to go to the University of Phoenix online. The idea being like-

Preet Bharara:

That makes sense. Right?

Anne Milgram:

Yeah, it makes sense, right? If you’re basically physically want to be in the U.S. there should be a reason for it. And so, they’ve always required that for vocational, they’ve always required that it be really 100% in person. And so, with the with academic, they’ve required that it be like, at least a certain percentage of the amount of time that you’re that you’re taking classes. And so, in March when COVID-19 hit, and the schools just immediately hit pause and went online, they essentially put a pause on that rule.

Anne Milgram:

They basically said, “We’re going to put it on hold, we’re going to allow folks to stay here.” Frankly, it really creates issues. There are students who could not travel to their home countries, they had travel restrictions. And there are reasons also that if you’re a student, think about your daughter, like she just found out yesterday that she can’t go back in the fall. If you’re a student from another country, if you go home, you may not be able to come back in the fall.

Anne Milgram:

So a lot of people just wanted to stay put and try hopefully to get back to the classroom. So they hit pause on that rule. And I just assumed, as I think a lot of people did that, that would blast during this very unusual and rare period of time that the rule never imagined would be the case. And instead yesterday, ICE came out and basically said, “If you’re a foreign student,” like for example, a foreign student at your daughter’s school could not stay in the United States. Would have to essentially leave because… Or find another basis to get a visa like an internship or a job for which they were permitted. But that’s very difficult to do.

Preet Bharara:

Or to transfer to a place that’s not going online, which is too late to do in almost every instance.

Anne Milgram:

Yes, exactly. It is late. If they’d said in March, “Look, we’ll do this for this semester, but start again in the fall, people have to be sitting in classes.” And you know, the fix that a lot of people are talking about is, if you are at a hybrid school, so we teach at NYU Law. NYU Law has said there’ll be hybrid in the fall meaning, students will get to choose whether they’re remote or in person and not all classes will be able to be offered in person, but some will be.

Anne Milgram:

And so, if a student is enrolled in a program like that, they could be as long as they go, I think to a physical class. And I don’t know the exact number of classes they have to attend in a semester, but it is not every class. They don’t have to be in a situation every day where they might feel concerned about their health and safety.

Anne Milgram:

So, there is a path for universities now to change course and say they’re doing hybrid, and then offer a couple of courses in person, that would allow these students to stay. But it really just felt to me like, unnecessary, really like not reading the moment in time, which is like, the students are not seeking to stay in the U.S. to be online. They want to be in school. So, it felt really unfair to me.

Preet Bharara:

Especially when maybe the colleges are making housing accommodations for some of those people. Like there are schools, including my daughter’s, that are making an accommodation for people who are in special circumstances like those international students, I believe, and allowing them to be on campus. And so, when the school is being accommodating, I don’t know why. Other than the cruelty it’s an unnecessary thing, that is part and parcel of an overall anti-immigration stance by the administration.

Preet Bharara:

I think they have the lawful ability to do this. And they have that pre-existing rule. But I think they’re over exercising their authority.

Anne Milgram:

Just one other point, which is that colleges and universities are already hurting a lot because their budgets depend on students being enrolled. And students being in housing. They own the housing properties. They budget for those properties to be rented, and to have a full group of students. And so, this is yet another way where you could see how hurt a university who’s probably counting on having whatever group of foreign students they admit, they’re counting on having those students there.

Anne Milgram:

And so again, it’s feels last minute, it feels unfair to the students. It’s not their fault that we’re in the midst of a global pandemic. And it just feels like, it’s hard to think of what the point is, other than to crack down on immigration, and it just feels to me like there’s no reasonable basis for it. Again, I think it’s lawful but a lot of people were upset about it yesterday, and I think rightly so.

Preet Bharara:

Look, this administration doesn’t want to protect the dreamers. So, if you have that situation, you can see that they’re sort of seeking out every opportunity, to stop people from coming into the United States, even people who are earning in education and might be future contributors to America. Doesn’t make doesn’t make a lot of sense unless you understand what the whole premise of the anti-immigration platform is, that comes out of the head and mouth of Stephen Miller.

Preet Bharara:

Ordinarily, something like this would be decided at the agency level, maybe not even high at the highest level of the agency. And that may be true here, because they know the marching orders, and they know the principles, the anti-immigration principles espoused by the White House. But I wouldn’t be shocked if this is something that was Stephen Miller’s own idea, as he pours over these regulations and figures out ways to screw people who are trying to be here lawfully in the country, and either learn or work.

Anne Milgram:

Yeah. I mean, I was thinking yesterday about one of the conversations we had about the border and what Trump has done at the border with people trying to enter the country. And I remember, the conversation like why would they do that? You said something of, maybe the cruelty is the point. And I thought that yesterday when it’s like, it’s hard to see that there’s a real immigration purpose that there’s… They’ve already authorized people to come into the U.S.

Anne Milgram:

It feels to me impossible to argue that they’re are a risk to U.S. society. They’re not taking jobs that Americans otherwise would have. Frankly, college enrollments are down. So they’re not taking spots for others. I can’t think of a justification that people could argue that has any legitimacy in my mind.

Preet Bharara:

So, there’s another criminal case that has burst onto the scene and something that I think people have been wondering about for a while. People will remember Jeffrey Epstein, and that saga that had a lot of twists and turns, and the case against him ended when he killed himself under weird and disturbing circumstances at the Metropolitan Correctional Center, while he was awaiting trial in the Southern District of New York.

Preet Bharara:

But his associate, an associate by the name of Ghislaine Maxwell was indicted by SDNY last week. In a six count indictment, press conference held by the new acting U.S. Attorney, Audrey Straus.

Audrey Straus:

Today we announce charges against Ghislaine Maxwell, for helping Jeffrey Epstein sexually exploit and abuse multiple minor girls from the period of 1994 through 1997.

Preet Bharara:

It’s an interesting indictment, I guess their questions as to why it took that long. Some of the conduct that’s alleged there does not overlap with the conduct that had been alleged against Jeffrey Epstein. But maybe we should take a step back and discuss who this woman Ghislaine Maxwell is.

Anne Milgram:

Yeah. So, she’s someone and this is, it’s worth noting this is almost a year to the day after Epstein was indicted in the Southern District. And just to go back, folks will remember that Jeffrey Epstein. He pled guilty in 2008 in Florida, and that plea was to soliciting a prostitute and again we remember that there was a federal investigation. And that federal investigation was essentially for sex trafficking and other things.

Anne Milgram:

It was pushed aside by Alex Acosta, essentially, instead, Epstein got a sweetheart deal. He got this plea in Florida State court. In 2009, there was a civil suit brought by one of Epstein’s victims. And she said in that civil suit that she’d been sexually abused by both Epstein and Ghislaine Maxwell, when she had been 16.

Anne Milgram:

So, Maxwell goes back to having been named in a suit, back in 2009. Epstein, when he was charged, last year, he was charged with sex trafficking minors, and that time period was related to 2002 to 2005. And the allegations were that he was sex trafficking girls as young as 14 to have sex with him. That basically was the sort of context that this comes up in. At the time when he was indicted. I think a lot of us were asking the question as to why she was not charged as well.

Anne Milgram:

And the reason why is that the allegations in the civil suit and that were also made publicly, were essentially that Ghislaine Maxwell had been Epstein’s girlfriend, and then became, he described her in a Vanity Fair article as his best friend. And it was very clear that she was facilitating the young girls going back and forth between Florida where Epstein had a place, in New York where he lived as well.

Anne Milgram:

She was facilitating getting them to those locations and essentially setting up these massages that were sexual assaults of these young women. And so, she was clearly identified as somebody who was part of the overall scheme, which was, a lot of times when you think about sex trafficking, if someone is procuring the victims, someone is luring them in giving them money or compensation of some form. And so, there was a lot I think of evidence in my mind, at least at the time that would have warranted investigating Maxwell for sex trafficking as part of a conspiracy with Epstein.

Preet Bharara:

Yeah, I mean, the thing that we’ll get into some of the details of the particular charges. But something for people to remember is we have case after case Whether there’s someone who is believed to be based on public allegations and otherwise, a serial sex offender. You have Harvey Weinstein, you have Bill Cosby, you have others. At the end of the day, when charges are brought, if they are ever brought, they’re most usually brought with respect to a small subset of those charges, because you can’t have generalized allegation that someone has engaged in sexual misconduct.

Preet Bharara:

In the court of law, you have to have a specific victim, specific corroboration if the victim is going to testify about what that victim says and alleges. And other physical evidence, evidence if it’s possible as well, which often is not when a lot of time has passed. And so even though it’s the case, that there’s a lot of public allegation that Jeffrey Epstein and Ghislaine Maxwell engaged in this conduct over a course of years and with many, many, many victims.

Preet Bharara:

At the end of the day at this moment, the charges against Ghislaine relate to three victims who are not identified by name but are identified generically, who probably are people who are going to testify at the trial. And are the best evidence that the government has about particular misconduct?

Anne Milgram:

And can we go to two points on that, that I think are worth noting. The first is that to your point, which is exactly right, that it’s not about generalized allegations. It’s about specific conduct under statute. So, sex trafficking, you have to essentially prove that someone was compelled into a commercial sex act. So, a sex act for which there’s some form of compensation.

Anne Milgram:

So, in thinking about someone like Maxwell, or other enablers, and you can think about this, whether it’s in the context of Harvey Weinstein, or Jeffrey Epstein or others, you have to prove that they shared the intent of the principle, if you charge them with profiting or somehow being a part of this overall sex trafficking organization. You have to prove that they knew about this organization, right? Or that they shared in the intent that Epstein had to sexually assault these young women.

Anne Milgram:

And so, when you think about that, you can understand that it’s not as straightforward as if a victim walks in and says, “I was sexually assaulted by Jeffrey Epstein.” That’s not enough. In order to convict someone like Maxwell, you need to have that victim walk in and be able to say, “Here are the things that Maxwell did.” And you have to be able to prove the case against her based on that. So, I think your point is well taken.

Anne Milgram:

There is some evidence though, when you go back to this, and to what she was actually charged with, there is some evidence and it goes back to the ’90s. And so the count charge and his indictment that relate to these three victims are from 1994 to 1997. What’s really interesting about that is it predates the sex trafficking statute, the Trafficking Victims Protection Act, which went into law in 2000.

Anne Milgram:

And so, Epstein was charged with sex trafficking. So essentially, she’s charged with the man Act, which is transporting someone across state lines for purposes of sexual assault, and she’s charged with essentially enticing those women. But what’s really important to understand is that those charges, which are before the human trafficking laws went into effect, they’re charges in which there’s one victim. There’s specific allegations that Maxwell engaged in a sexual assault of a young woman along with Epstein.

Anne Milgram:

And that’s powerful and important evidence, again, showing her actions. And so, as we think about this, it’s just really important to sort of put those pieces together when we think about why is she charged with the 1990 stuff and not the 2000 pieces.

Preet Bharara:

So there are two other accounts in the indictment as well, that are accounts of perjury, which can be a little bit easier to prove, but they’re kind of interesting. They stem from a civil deposition that Ghislaine gave in April of 2016, that arose from a lawsuit against her based on some of these same allegations. And when you charge perjury, or you charge making a false statement under 18 U.S.C. 1001, you have to plead with particularity in the indictment, what the statements were, that you’re alleging were false and material and in count five, they actually list the Q&A.

Preet Bharara:

And in the deposition, Ghislaine was asked, “Did Jeffrey Epstein have a scheme to recruit underage girls for sexual abuse massages. If you know.” By the way, that’s not a good practice to say if you know, I don’t know why people do that. Obviously, you only say it if you know. The answer was, from Ghislaine, “I don’t know what you’re talking about.” Question, “Lists all the people under the age of 18 that you interacted with at any of Jeffrey’s properties?”

Preet Bharara:

Answer, “I’m not aware of anybody that I interacted with other than obviously the plaintiff.” Who was 17 at this point. They alleged that’s perjury. Then there’s count six, which is a little bit of a longer excerpt from the deposition, which just you know, warning to some folks if you’re listening with your kids. Question. “Were you aware of the presence of sex toys or devices used in sexual activities in Mr. Epstein’s Palm Beach House?” Answer. “No, not that I recall.” And then there’s more questions about the sex toys or devices.

Preet Bharara:

And then she gets asked about other sexual activities of Mr. Epstein. And then the question is, “Is it your testimony that in the 1990s and 2000s you were not aware that Mr. Epstein was having sexual activities with anyone other than yourself and the blonde and brunette on those few occasions when they were involved with you?” Answer. “That is my testimony. That is correct.” Question. “Is it your testimony that you’ve never given anybody a massage?” It’s kind of a broad question.

Anne Milgram:

I was going to say, that’s a very, very broad question. And the answer is equally broad.

Preet Bharara:

Answer. “I have not given anyone a massage. Anyone.” Question. “You never gave Mr. Epstein a massage? Is that your testimony?” Answer. “That is my testimony.” Then question. “You never gave minor victim two a massage is your testimony?” Answer. “I never gave minor victim two a massage.” So, it’s some detail in the deposition testimony.

Anne Milgram:

And the fact that it’s short like that means that minor victim will testify at a trial that in fact Maxwell did give her a massage, and did give Maxwell.

Preet Bharara:

Yeah. It’s what it must mean. But also, we were talking about timeframes. And yeah, the particular first four accounts that relate to sex trafficking, and enticement and coercion of a minor relate to a particular time period, ’94 to ’97. But you see with respect to this charges of perjury, these falsehoods. The timeframe for the activity that’s being asked about is much broader than ’94 to ’97.

Anne Milgram:

Yeah. And the one thing I’d say. So, there are a couple points about the ’94 to ’97 charges. It’s clear that they have witnesses victims who will testify, and it’s clear there are some pretty specific allegations. It is older though. So you’re talking about things that happened 10 years before 2000. The allegations from the 2000s. You’re also talking about laws that I’m not saying that they’re hard to prove.

Anne Milgram:

I personally favor the human trafficking statutes, which basically say, “For victims under the age of 18, that if there’s a commercial sex act, that the individuals involved and the people who profit can be held liable for federal sex trafficking.” So, I think there’s got to be a reason that they didn’t charge it as sex trafficking, either they intend to or they’re hoping to, or they’re always looking for additional victims, or they’ve made a decision that their strongest case and the victims on which they can rely to prove that Maxwell was involved directly, the strongest case is from the 1990s.

Anne Milgram:

And so, they’ve gone with that. What do you make of the arguments, Preet, that this relates to Berman being fired recently?” Jeff Berman, who was the U.S. Attorney until recently, and now his first assistant is has taken over. And it’s really less than two weeks later that these charges were filed.

Preet Bharara:

Yeah, I take that is pure coincidence. I mean, when I was fired, in March of 2017, there were some cases including a very prominent one, that we were investigating with respect to the Mayor of the City of New York, which was close to conclusion. And it’s always going to be the case, right? There’s always in an office like SDNY. In the course of any given year, there are probably a dozen or more very significant cases, any given time, there’s going to be a significant case that’s about to be announced or rest about to be made.

Preet Bharara:

And so, when someone leaves, there’s always going to be some significant thing that happens shortly thereafter. And people are always going to say, “Well, maybe that’s not a coincidence or some reason why the case wasn’t brought before and I don’t buy that, I mean, Audrey Strauss was handpicked by, yeah Audrey Strauss was handpicked by Geoffrey Berman. I’m sure they were on the same page with respect to how they were deciding to pursue various cases. And now is just the time.

Anne Milgram:

Yeah. And in your case, I’m pretty sure that the president wouldn’t have fired you to protect Bill de Blasio, the democratic mayor of New York. I’m just saying, that’s just my view. What do you make Preet of the fact that this case is being handled, as the Epstein case was in the Public Corruption Unit, not in the Human Trafficking Unit of the U.S. Attorney’s office?

Preet Bharara:

I think that somewhat significant people have commented on it. And it could be for a number of reasons. It could be that as an initial matter, there were at least one or more targets or subjects of the investigation, who were public figures, maybe they were looking at the sweetheart deal that you were talking about, between the U.S. Attorney’s Office in the Southern District of Florida. Led them by Alex Acosta public official, and maybe they thought there were some irregularities there and that’s what they were looking at.

Preet Bharara:

Maybe they were looking at some Other prominent public officials who seemed to have been caught up in the sex trafficking against him charges have not been brought. But there are people including a certain prince that has been implicated in all of this. And so, maybe they decided because of the sensitivity of the matters, and the possibility that there would be some investigation of or charges against someone who is a public figure, either here or somewhere else, that, that’s why the investigation was… Anyway, it’s not the first time that what looks like a sex trafficking operation was being investigated by the Public Corruption Unit in the Southern District.

Preet Bharara:

You may recall some years ago. And this was a giveaway at the time as well, that there was an investigation into a certain prostitution ring and escort service, whose name I’m now forgetting. And my good buddy, I think this is true. Boy Johnson, who was then the chief of the Public Corruption Unit, was sitting in the back of the courtroom when there was a presentment or an arraignment of a defendant in that sex trafficking case.

Preet Bharara:

And people wondered why that was, and then we all learned some time later, the reason that was the case is that one of the people caught up in that investigation was the then Governor of the State of New York, Eliot Spitzer. They took his resignation. And then my predecessor Mike Garcia made that made the decision not to charge him. But look, that’s an example of how you have this kind of a case with this kind of conduct being investigated by the public corruption. I’m not saying there’s necessarily such a person, but that’s a reasonable-

Anne Milgram:

It’s also a fair point that like if you had a group of lawyers who came in initially to do the public corruption aspect of it, why was he given a sweetheart deal in Florida, all those pieces, they would keep the case as a rule. They might bring in someone with sex trafficking prosecution experience, but once the case is in a unit, and they’ve gone down the road of a prosecution. Now, you mentioned Prince Andrew of England, I was sort of struck by the photographs of Ghislaine Maxwell sitting on the throne in England.

Anne Milgram:

It’s a very interesting thing to see about, like the extent of the power that Epstein had, and the sort of access that they both had, and potentially the depth of what went on here? I mean, we don’t know. But I don’t want to sort of speculate, but it really that’s sort of jarring. What’s also interesting to me is I think the question a lot of folks are raising is, will she plead guilty and cooperate? Will she become a cooperator.

Anne Milgram:

And I think these are obviously serious charges. They carry sentences of up to 20 years, in at least one incense. And so, but she’s also not the principal, she will make arguments I think defenses that are other than the defenses may be similar to what Epstein is made, but I think she’ll make defenses of, “I didn’t know what’s happening.” I think that those will be obviously the U.S. Attorney’s Office believes that they can defeat them.

Anne Milgram:

It feels to me like that they are setting this up to have victim testimony that she was involved directly. But what do you make of this possibility that she cooperates and provides evidence against other people? Yeah.

Preet Bharara:

I think the presumption with respect to almost anybody who was charged and whether it’s a drug conspiracy case, or something like this, or public corruption, there’s an open door policy on cooperation. And if it is the case, that she is aware of other misconduct on the part of folks who are not currently chargeable, and she wants to get some lenience in her inner sensing if she decides to plead guilty, yeah, she should conform with it.

Preet Bharara:

And by the way, people should remember, it is not always the case, that an arrested person necessarily can get cooperation only for disclosing information about other people who are involved in the same kind of misconduct that they were. I mean, if you go back to take a totally different kind of case that we’ve talked about in the past, the College Admissions Scandal, where all those prominent and wealthy parents were paying to have people take their kids as a tease or, get into sports programs at various colleges.

Preet Bharara:

All those cases all around the country were made on the strength of one cooperating witness. And that cooperating witness, I think, came out of Massachusetts, was being investigated and was squeezed on a security’s fraud investigation and said, “Hey, I had this information about this college admission scandal.” And hence he became a cooperator. It is possible given the circle in which Ghislaine Maxwell travels, that she has evidence of completely different kinds of crimes, and other sorts of things that are going on in the part of prominent people or not prominent people.

Preet Bharara:

And that can be the basis of cooperation as well. If you never know, it’s not necessarily the case that she has like a little black book that lists all the disgusting men who engaged in this under-age sexual misconduct.

Anne Milgram:

It’s possible she does, right.

Preet Bharara:

Yeah, but it doesn’t have to be-

Anne Milgram:

It’s possible she has other evidence of other crimes.

Preet Bharara:

Yeah. The way we thought about it was, you get somebody and you have decent evidence against them, and a lawyer calls and says, “Is there any possibility of cooperation?” And the response would always be, “What do you have? What do you got?” And you never know what kinds of crazy things people have. I mean, there’s all sorts of possibilities. And you and I are in a difficult position outside of that place, and not privy to the conversations to know what kind of information she has.

Preet Bharara:

And maybe she doesn’t have any, or maybe she’s not willing to provide any. And she thinks it’s a winnable case because the charges are old, and recollections can be attacked. But I think it’s an uphill battle for.

Anne Milgram:

I agree. I agree. And I think that you can tell from the charges that at least with one victim, there are specific allegations related directly to her. And so, I think some of the defense’s that she would try to use if she were charged just as part of this conspiracy, she is charged with conspiracy, but if it were just a conspiracy charge, and there were no specific or direct allegations against her, essentially getting these miners to Epstein in Florida back and forth, and herself sexually abusing one of the girls, I think, if not for those specific allegations, it’s a harder case for the government and she would have more of an ability to sort of say, “I didn’t know it was happening.” I personally think that, that’s defeatable as an argument, but again, the specific nature of the sort of allegations here make me think that the government has been careful to sort of have both.

Preet Bharara:

And she has another potential defense. I think it’s a weak defense. It’s one that we talked about before, before there was any additional charge against an associate of Epstein. And that is, this weird deal we keep talking about in the ’70s to Florida, included something that I’ve never seen. I don’t know if you’ve ever seen.

Preet Bharara:

The deal purported to shield all other people who were involved with him. In other words, third parties could not be charged and they were immunized in connection with the plea deal that Geoffrey Epstein entered into. Now usually, you have an understanding between the government, the prosecutor’s office, and the particular defendant who’s pleading guilty. And you say, “If you plead guilty to this, you will not be further prosecuted for stuff that’s in connection with this thing that you’re pleading guilty to.”

Preet Bharara:

You don’t get sort of blanket immunity for all sorts of other unknown and unnamed co-conspirators or enablers that you have, that agreement named for specific people. Ghislaine Maxwell was not one of them. So, presumably her lawyers will try to make the argument that there was an agreement of immunity with respect to anybody who’s involved with him. And that was done by the United States Attorney’s Office in the Southern District of Florida, which is part of the Department of Justice.

Preet Bharara:

And here you have another U.S. Attorney’s Office. The Southern District of New York, should be bound by that agreement. Most people think, and I agree that that doesn’t make a ton of sense as a legal matter, that that agreement with the Southern District of Florida binds only that United States Attorney’s Office, especially if it’s the case. And I think we talked about this before, especially if it’s the case that that office didn’t publicize the fact that there was this global deal with all the other U.S. Attorney’s offices.

Preet Bharara:

There have been times when I was the U.S. Attorney, that you get an email, you get a memo from the Attorney General’s office saying, “Hey, the U.S. Attorney’s Office in Colorado is settling once and for all, some big environmental or some other action with the party. Please let us know if you have any pending investigations or if you object to that in any way.”

Preet Bharara:

In that circumstance, which is very rare, but it happened. I guess there is some argument that every U.S. Attorney’s Office in the department as a whole is barred from bringing the later case because you knew about the settlement and you knew about the arrangement and you’ve had a chance to object. This didn’t happen here as far as I can tell. And I don’t think the legal argument is going to hold, I don’t think it’s an enforced thing, especially since she wasn’t named in that agreement, either.

Anne Milgram:

I agree. I think even if she was named that, legally, it wouldn’t be binding on the southern district for all the reasons you just say. It’s, I’ve never seen anything like it. And I think you just can’t imagine a world in which you would allow U.S. Attorney’s offices to bind one another without any knowledge or the approval of the department as a whole that it would bind all these other offices.

Anne Milgram:

It’s very strange. And so, I agree with you. The fact that she’s not named makes it even more implausible to me that she has a real argument. I suspect her lawyer may argue it because I mean, they’re going to have to think about how to sort of argue-

Preet Bharara:

You argue everything. You don’t leave an argument on the table.

Anne Milgram:

Yeah, exactly. One other thing. I think we’ll see Preet, just to sort of front this for folks is going back to Prince Andrew for a second. There’s an allegation that Maxwell set up an encounter for him with an underage girl in London. That’s not charged in the indictment, and probably is not charged because there are jurisdictional issues right. You would have to prove that something was connected to the United States.

Anne Milgram:

What becomes interesting in my mind is the government often moves to get in something known as 404(b) evidence, other bad acts evidence. And so even if Maxwell isn’t charged with other incidents that could have been criminal, the government can try to get an evidence of those. And so, it’s an interesting question to me here. And we saw this with the Weinstein case, you see it in a lot with Bill Cosby’s case.

Anne Milgram:

There’s other bad acts evidence that comes in even though it’s not charged as part of the indictment. And so, I would expect to see some of that fight between the government and the defense counsel here and potentially we’ll see some other witnesses and victims come in to trial.

Preet Bharara:

One other point I want to make about the possibility of cooperation would often bears on that decision. And many people have made this point but it’s something that we took as an article of faith, right or wrong. If someone gets incarcerated pre-trial, in other words, does not make bail. That person often than you might imagine engages in a process of deliberation, that leans more heavily towards cooperation. People do not want to be locked up. And depending on what happens with her. That could affect her decision to cooperate or not cooperate. At the moment, we’re recording this on Tuesday, July 7. I think there is a-

Anne Milgram:

The hearing is Friday the 10th.

Preet Bharara:

Friday the 10th.

Anne Milgram:

That’s right.

Preet Bharara:

And the judge by the way, is Judge Ali Nathan, who’s very smart and very deliberate I think.

Anne Milgram:

I agree.

Preet Bharara:

Yeah, we both know her.

Anne Milgram:

Will be thoughtful.

Preet Bharara:

Will be very thoughtful and will be careful in this case and he’s a good judge. I don’t know what a position-

Anne Milgram:

It’s an interesting question too. I think one of the interesting questions with bail will also be it appears the government has taken the position that she should not be given bail, that Maxwell should not get bail. She has 15 bank accounts totaling more than $20 million. She bought property in New Hampshire where she was placed under arrest by the FBI for over a million dollars that was done in the name of a limited liability corporation to conceal her identity. And so, they’re basically going to argue, she also has passports.

Preet Bharara:

Plural. Passports plural.

Anne Milgram:

Exactly. France, the United Kingdom, and the United States. And so, they’re going to argue that she has a motive to flee, she has the opportunity because she has the funds, and the ability to use these limited liability corporations to sort of conceal her movements. And she’s got passports. So she has the ability to travel on these other passports or get a private jet or whatnot. And so, I think that will be the argument that’s made.

Anne Milgram:

She also, it’s very interesting because what’s not clear to me, and I’m sure the government has a sense of this, what’s not clear to me is how much of her money comes from Epstein. Although the townhouse that she owns in New York, which was purchased also by a limited liability corporation is 10 bucks from Epstein’s townhouse. And so, it appears at least the sort of subtext is that a lot of that money came from Epstein, and it will be the source of a lot of her funds.

Anne Milgram:

And so, I think that there are going to be a lot of fascinating questions at play on Friday in the bail hearing. One other point just to make having prosecuted a number of sex trafficking cases is that one of the arguments that’s often made by people like Maxwell, like in every trafficking case I’ve done, there have been women who are initially victims of sex trafficking, they themselves are compelled into prostitution, there’s often force used, coercion.

Anne Milgram:

But then at some point there are often women who become part of, they start to work with the traffickers and they become enforcers, they start to go out and recruit young girls, essentially they become part of the criminal operation. And they themselves become sex traffickers. And in prostitution, generally, women are referred to as bottoms, which would be sort of like someone who was compelled into prostitution earlier, but then sort of becomes like the lead, may still be forced to engage in prostitution, but becomes sort of like one of the agents of the traffickers.

Anne Milgram:

And here was interesting to me. I thought a lot about that dynamic. I don’t think Maxwell can make those arguments because she was not under age when she was first with Epstein. She had a consensual relationship with him. There’s no evidence at least that we’ve seen so far that she was compelled to engage in this kind of conduct or that she was initially herself forced into was sexually assaulted. And so, I’ll be curious to see how this unfolds.

Anne Milgram:

But as I was thinking about the way that sex trafficking cases are often defended, particularly when it comes to women who are charged as part of the sex trafficking conspiracy, that defense feels to me like it will not be available or will not be successful to Maxwell. But again, there are a lot of other defenses, I think that they’ll potentially make.

Anne Milgram:

And I was just I’ve just been thinking a little bit about, how they’re going to frame this. And it’s either going to be, “I didn’t know,” which was her argument in the sort of depositions, or I was myself compelled into it. And so, just sort of foreshadowing ahead to where this could possibly go.

Preet Bharara:

We’ll keep an eye on it. We mentioned another sort of peculiar personnel move at the Department of Justice, which would fly under the radar for most people.

Anne Milgram:

So strange. Yes.

Preet Bharara:

So remember as a backdrop, as we discussed a great length, Jeff Berman, who was my successor at SDNY was summarily removed and the plan was to swap him out for the chairman of the Securities and Exchange Commission, Jay Clayton, even though that person Jay Clayton find securities lawyer hadn’t done any criminal cases, no litigation experience, why would you do that when everyone’s functionally sort of properly in their respective roles?

Preet Bharara:

We have another lower profile example of the same. The U.S. attorney who has been serving in the Eastern District of New York, Rich Donoghue, I think is a good and smart lawyer. And was a colleague, he was a chief of the Criminal Division when I was a United States Attorney in SDNY he was in EDNY. So, I have no reason to think anything ill of him. But suddenly, it looks like the department wants to swap him out for the person who serves in a fairly prominent position in the Department of Justice, something known as the PADAG, the Principal Assistant Deputy Attorney General.

Preet Bharara:

So basically, the top staffer to the DAG, the person who Rod Rosenstein was, who was currently Jeff Rosen. It’s a fine job, and it’s an important job, and it was a lot of traffic because-

Anne Milgram:

And a hard job.

Preet Bharara:

And a hard job. It’s a job that was held by our friend Lisa Monaco for a period of time, and usually you go to high places from there. And Rich Donoghue, he was not confirmed by the Senate. He’s another example of somebody who was appointed by the President or appointed by the Justice Department and then put into place-

Anne Milgram:

By sessions and then put into place by the judges, right.

Preet Bharara:

By the court. And I mean no disparagement to high ranking officials in Washington. But it is not ordinary for someone who is either court appointed or Senate confirmed United States Attorney in a big important district like SDNY or EDNY, or some of these other offices to go become a staffer in DC. That’s not something happens.

Anne Milgram:

It’s a better job to be a U.S. Attorney. You could say it. You’re beating around the bush.

Preet Bharara:

If anybody ever offered that to me. I just leave it, I’m like, “Why don’t you just fire me?” I really, I don’t get it.

Anne Milgram:

You wouldn’t have left your job for it. So, I take that and I think that’s a really fair point. It is a very important job. It is an inside baseball job and there is no question in my mind that there’s got to be a need at DOJ. You know, bars the Attorney General, the attorney general has just an enormous department with a huge number of priorities. Put Barr aside for a second, like the Attorney General job is a huge job.

Anne Milgram:

The Attorney General is also sort of the face of the department. And so if you think about public facing events, the press conferences or like dealing with the president and the White House, like that’s often the attorney general. The deputy AG is often someone who has a lot of criminal experience as a prosecutor who can work with the U.S. Attorney’s offices, who essentially runs like and with the PADAG, who is their top deputy essentially runs the day to day of the criminal sort of function of the department.

Anne Milgram:

Things do go up to the AG, but a lot of that is usually done by the DAG, the Deputy Attorney General. Here, the DAG can’t do it. He doesn’t have any background in it. He was a strange choice. I think you and I talked about it, because, again, it’s a really important function and part of the Department of Justice.

Anne Milgram:

So then, they have essentially no one who has the respect of the U.S. Attorney’s. The respect of the criminal division or sort of really just the expertise and understanding to be able to do it well. And so, I think it’s not a question in my mind that there is a significant need there. But it’s also not a question in my mind that like that job is a step down in many ways from being U.S. Attorney where you have your own district, you get to run cases. They were involved. They’ve been involved in, they’ve done a lot of significant cases in Brooklyn, and I’m sure that he loves his job.

Anne Milgram:

And so, you could tell me if I’m wrong, but I don’t think they gave him a choice as to whether or not he would leave the Eastern District. The only other possibility would be if there was something politically afoot, that they that Bill Barr was trying to step in and stop. There’s no evidence of that.

Preet Bharara:

Well, I think the issue was less possibly the removal of Rich Donahue, and more the insertion of a person who again, I don’t have evidence of this, but just there’s a pattern in track record here. The insertion of somebody who has been in the main justice building for a while, reports to the DAG but also obviously works closely with the Attorney General, and maybe it’s the case that they would perceive this person as being more malleable in a way that maybe other people have not been.

Preet Bharara:

And again, I’m saying that because there’s been a practice, both with respect to the DC U.S. Attorney’s Office, and interventions in cases involving people who are close to the President, Roger Stone, Michael Flynn, you had the whole debacle of how they tried to remove Geoffrey Berman, clearly, because they didn’t like the way he was handling things. And he was not so malleable. And against the backdrop of those examples, you have no choice but to wonder whether that’s also happening in the Eastern District.

Anne Milgram:

Yeah, it’s hard to know. I mean, it’s also strange, and really again, I think it’s inside baseball, but it is one of those things that both you and I looked at, and I was like, “What is happening?” And also, frankly it just shows, whatever it is, it’s a sign of how poorly managed the department is right now. Whether it’s being done for political influence or for other reasons, but it’s really, really unusual.

Preet Bharara:

The musical chairs is just odd. I mean, it would be a little bit different.

Anne Milgram:

It’s also bad for cases. It’s bad for the institution. Yeah.

Preet Bharara:

But in particular, the swap. I don’t Understand the pension for the swap. I guess we didn’t choose properly in the first place, it turns out that the person in job A should be in job B, and the person in job B should be in job A. You don’t see that a lot, like people either move up or they get removed. They’re not swapped out, especially when the jobs are very different.

Anne Milgram:

I mean, I would just throw one other thing on the table, which is that I don’t know Donoghue, but he’s a career prosecutor, right? I mean, he looks like a serious career lawyer.

Preet Bharara:

He’s a respected lawyer and prosecutor who we dealt with and he was always professional and good.

Anne Milgram:

Yeah, but he’s now walking into a situation where, we’ve talked about what Barr did with Roger Stone. We’ve talked about what Barr has done with Michael Flynn. We know that Barr saying that the germ report is coming, and that there may be criminal cases that they want to bring as it relates to that. I mean, he’s walking into a swamp for sure. And I think a very, very difficult and problematic situation potentially.

Anne Milgram:

And so, we’ll have to see what happens to him, does he gets swapped out in a month or does he leave or does he become part of that team. We’ll have to wait and see. But it’s odd. And it also sort of made me feel like they must like him and trust him for whatever reason it is, I think that he’ll carry water consistent with how the Attorney General wants things to be done.

Anne Milgram:

Again, I don’t know him and I cast no aspersions other than to say like that is not a move that I think most decent U.S. attorneys would want to make. So, Preet as we think a lot about the need for first responders in law enforcement and dealing with emergencies. We might have a little bit of a laughing challenge from Schweinfurt Germany. Are you ready?

Preet Bharara:

I’m ready. I’m ready.

Anne Milgram:

Some two weeks ago, 60 people were evacuated-

Preet Bharara:

I mean, you’re so good at this, I’m laughing already.

Anne Milgram:

Are you on pins and needles?

Preet Bharara:

Well, but I know. I know what you’re going to say.

Anne Milgram:

You know where we’re going?

Preet Bharara:

You’re not surprising me, so I think it’s funny already.

Anne Milgram:

So two weeks ago, 60 people were evacuated from a post office. Which by the way, I don’t know if you had the same reaction I did, but I was like, “Why are people actually physically in offices today?” But anyway.

Preet Bharara:

Can you say the name of the town again?

Anne Milgram:

Schweinfurt.

Preet Bharara:

Okay.

Anne Milgram:

In Germany. So, 60 people were evacuated from a post office there after the post office received a suspicious package that postal workers believed was emitting poisonous gas.

Preet Bharara:

So, this was terrorism? People thought it was terrorism.

Anne Milgram:

That’s what they thought right? So emerged immediately, they called emergency services. The smell was so bad, that six of the postal workers were taken to the hospital and they were treated for nausea. There were six ambulances, five first responder cars, two emergency vehicles and three different fire departments that all responded to the call. Then they do what they do in these cases. They think it could be it could be a bomb, it could be anything. They probably suited up in their hazmat gear, and then they open the package. And when they opened it, they discovered that the odor was not coming from a gas canister.

Preet Bharara:

Wait a minute, so it was not terrorism. That’s why we’re laughing. Obviously, we knew that it wasn’t.

Anne Milgram:

It was terrorism. The source of the smell was four Thai durian fruits sent as a gift to a 50 year old Schweinfurt resident by his friend in Nuremberg. Often referred to as the King of fruit, durian smell and taste, divide opinion.

Preet Bharara:

Have you ever had a durian fruit?

Anne Milgram:

It’s supposed to be the smelliest fruit in the world.

Preet Bharara:

Have you ever had one?

Anne Milgram:

I haven’t had it. When Aaron, almost six year old he’ll be six on Friday. When he was like two, I think I’ve told this he was really into fruits and vegetables, not into eating them but into cataloging them and knowing what they all were. And he could literally do the alphabet by fruits and vegetables. And we were pretty curious about durian because it is supposed to be the stinkiest fruit in the world.

Anne Milgram:

He had a friend in preschool whose dad loved it, was from Malaysia and loved it, and we went to Chinatown once to go on like a fruit and vegetable Safari. And while there, we of course saw durian from a distance and we saw that it was made into like smoothies. I wanted to try it but I could not. I cannot convince them. So I have not tried it. I totally would try it.

Preet Bharara:

It’s funny how some people have described the durian fruit for example, if people want to get a sense of what it tastes and smells like food writer Richard Sterling apparently once described the odor as “Turpentine and onions garnished with a Jim sock.”

Anne Milgram:

It’s so evocative.

Preet Bharara:

And the late Anthony Bourdain, who we missed dearly, said that after eating a durian fruit, “Your breath will smell as if you’ve been french kissing your dead grandmother.”

Anne Milgram:

Now, I just want to say, some people love it. Some people love it and some say its creamy texture is similar to that of a ‘cheesecake with a hint of almonds.’

Preet Bharara:

Whoa, that’s very different.

Anne Milgram:

It’s like I don’t know. What do they say like one man’s something is another man’s something else? I can’t remember.

Preet Bharara:

One man’s gym sock is another man’s durian fruit.

Anne Milgram:

Is another man’s cheesecake.

Preet Bharara:

Yes, I guess. Hey, well look, I’m glad they take it seriously. I’m glad that first responders took it seriously, you take it all seriously and I’m glad-

Anne Milgram:

There’s a happy ending too because this Schweinfurt resident got the package and has been enjoying the fruit.

Preet Bharara:

Are we sure he’s been enjoying it? I think we just need to say that, so that the story has a happy ending.

Anne Milgram:

And actually, Singapore has banned durians from mass transit, because they’re so smelly. And in case anyone’s wondering a lot of this information in the language we’ve used came from an article in The Guardian newspaper.

Anne Milgram:

Anne have a good week. Happy birthday to your son. Don’t eat any durian fruits.

Preet Bharara:

Do not worry. There’s no durian birthday cake coming. Have a great week.

Anne Milgram:

And watch Hamilton.

Preet Bharara:

I will. I’ll talk to you soon.

Announcer:

That’s it for this week’s Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior audio producer is David Tatasciore. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Calvin Lord, Noa Azulai, and Geoff Iisenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider Community.

 

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